Monday, March 21, 2005

Andrew McCarthy has a brilliant article on the Terri Schiavo situation in Florida. His basic thesis can be summed up fairly easily. Terri Schiavo is under the care of other people. By removing the feeding tube, those people are causing her to die. There is no difference between removing the tube and shooting her in the head.

McCarthy distinguishes this case from a brain dead patient:

"If a person is brain dead — meaning, in layman's terms (which are the only terms on which I understand the concept), for all intents and purposes dead but still respirating by artificial means — there would seem to be little doubt that a judge is empowered to discontinue the artificial means. In such an instance, the judge (and whoever pulls the plug) is not intentionally causing death or pain. Instead, death has already occurred, and it is merely the artificially supported functions that are being terminated. But, as noted above, that is not the Terri Schiavo case. She is alive; someone has to do something affirmative and intentional to snuff out that life and cause her death. That affirmative act began Friday afternoon."

So, the distinction is that in the brain dead patient’s case, the patient is already dead, while in Terri's situation something needs to be done for her to die.

A reasonable argument against this comparison is that in both cases we are merely preventing her from receiving medical care. (here and here). At the beginning of the article, he implicitly responds to this argument:

"Terri is not a person who is brain dead or a corpse being sustained by artificial means. She is alive and merely needs nutrition, like any child or incapacitated adult needs food and water. She will not be dead unless someone actually takes action to kill her. "

In other words, denying her nutrition is an affirmative act, and not just allowing a person to die (which is passive).

Let's assume that Terri wanted to die in this case. Hilzoy argues that:

"First, in this country competent adults have the right to decline medical treatment. This is a very good thing, since many of the things doctors do to their patients would constitute assault if done against those patients' wills. It is this right that allows cancer patients to decide not to undergo that last excruciating round of chemo that would give them only a slight chance of survival, Jehovah's Witnesses to refuse the blood transfusions that they believe it would be sinful to receive, and people with painful terminal illnesses to refuse treatment for other diseases, like pneumonia, that offer them the chance of an easier death. This right is extremely important: without it, we could be subjected to serious assaults on our body without our consent, so long as some physician said that those assaults were medically necessary."

The issue is not about killing her, but as Rivka notes, whether "it is legitimate to refuse medical treatment intended to prolong her life." It's about recognizing bodily integrity. So Terri wanted to die, and we should obey those wishes. And had Terri asked to be shot in the head or chopped up with an ax, we wouldn't because that would be taking matters into our own hands (i.e., by committing an affirmative act).

On to my two cents:

I do not understand how medical care and nutrition are analogous. Medical care comes up when something unusual occurs; without care, the person will die. If we accept the concept of autonomy, we must obey her wishes. But nutrition is an entirely different idea.

Let's compare food and hydration to air. Let's say a person needed a tube to supply air. Would we respect her wishes if she asked to have the tube removed? I would have to guess Hilzoy would say yes. But can we place a bag over her head? Why not? We aren't actually killing her. We are just preventing her from receiving air. And if we believe in autonomy and know she would want to receive no more air, what's the difference?

Maybe the difference is there's a tube sticking into her body and keeping it there violates her right to autonomy while placing a bag over her head has nothing to do with autonomy. But let's say we developed some Star Trek gizmo that allows us to beam the oxygen directly into her lungs. Would that be ok even if she didn't want it? Is the right of bodily autonomy merely about preventing people from sticking things into our body? I doubt it. The idea seems to be rooted in allowing us to make crucial decisions about our life. If we choose to have no more food or drink or even air, even if those necessities could be administered without a single cut, should our wishes be denied?

The truth is, under Hilzoy's analysis, we should be able to place a bag over Terri's head. Yes, she can breath alone, but she wanted to die, and as long as we take no affirmative action to kill her (which is an act that stops the body from keeping up its vital processes), I see no reason to distinguish between removing the tube and placing a bag over her head.

Wednesday, March 16, 2005

In this post I will take a look at the Due Process argument made in favor of SSM. Again, it is important to note that I am staunchly against this analysis (more so than the Equal Protection argument).

This isn't really the place to explain why I am against the concept of substantive due process. Suffice it to say that courts routinely use this concept to find rights that are nowhere in the Constitution in order to strike down laws they don't like.

In order to ascertain if SSM is a legal right protected by the Constitution, we must determine what type of rights are protected under the Due Process clause.

In one of more famous SC decisions, Griswold v. Connecticut, the Court ruled that a law prohibiting the sale of contraceptives to married couples is unconstitutional. Justice Douglas argued that a "zone of privacy" can be inferred from the penumbras of the various amendments that protect privacy. At the end he noted that,

"We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system."

Justice Goldberg in his concurrence mentioned that,

"the Due Process Clause protects those liberties that are so rooted in the traditions and conscience of our people as to be ranked as fundamental." (internal quotations omitted).

In Zablocki v. Redhail, the Court noted that the right to marry is "a central part of the liberty protected by the Due Process Clause." The Court also recognized that a state can only interfere with a fundamental right if the interference is "supported by sufficiently important state interests and is closely tailored to effectuate only those interests."

The most important question in this analysis is how we frame this issue. Do we say that when the law forbids John and Bill from marrying it is infringing on their general right to marry, or do we say it is preventing them from exercising their right to a same-sex marriage? In other words do we construe the right broadly and say that marriage is a fundamental right that encompasses SSM, or are advocates of SSM asking the court to create a new right of marriage?

The Hawaii Supreme Court in Baehr v. Lewin recognized that they were being asked to broaden the right to marry that is embedded in the right of privacy to include SSM. While ruling that the Equal Protection clause denies the state the ability to proscribe SSM without an important governmental objective, it expressly noted that under federal law SSM is not included in the fundamental right of marriage laid out in Zablocki.

However, a NY Supreme Court judge argued in Hernandez v. Robles, 2005 NY Slip Op 25057 that the state did not provide a rational interest for excluding SSM since the right whom to marry is encompassed in the right to marry. The Court viewed the right broadly and assumed the issue was about the right to marry generally.

Notwithstanding the equal protection analysis that I've attempted to deal with on this blog, the 14th Amendment does not require the state to recognize SSM. As I just explained, the debate comes down to how we frame the issue. I choose to recognize the former and agree with Baehr.

Like many other legal issues, as I've noted before, the judge has discretion of how to frame the issue. Originalists believe that when the court is looking at a right, it must try to find the original understanding of the proper level of abstraction. But in reality, there really is little guidance for the judge as to what level of abstraction to use.

In this case, though, we need to look at how we define the right to marry and see if it logically could encompass SSM. As I've argued before, marriage throughout history was a concept that could only apply to men and women because its primary basis was procreation. If one agrees with my analysis, marriage, at its broadest limits, could only be limited to members of the opposite sex.

One might argue that marriage should not be limited to that pairing. Maybe not. The proper question though is whether conceptually marriage has been limited to men and women. Does the institution of marriage include more than just men and women? If yes, why would such an arrangement come into existence? What interest was being served thousands of years ago when marriage was first envisioned?

Gabriel argued in this blog's comments section that the only thing stopping a person from suing on behalf of a tree he wishes to marry is the lack of rights afforded to trees by our Constitution. In the same comment he argues that the state defines the right to marry and can only exclude a person if it has a compelling interest (or governmental objective).

I can only see two possible explanations for what he is referring to (maybe there are more). One is that the government is granting a right to marry and cannot limit that right to only certain people without a legitimate reason. So using my man-tree example, the State has chosen to grant the right of marriage to humans but not to trees and since trees are not afforded equal rights by the Constitution, that classification is not a problem.

The problem with this argument is that it presumes we have no right to marry independent of the State's conferral of this right. This argument ignores the fact that the right to marry is included in the right of privacy, which, as Justice Douglas pointed out, is older than our Constitution and our states. In other words, the right would exist even independent of any laws.

The other argument is that the right precedes the State, but the government has a right to define the contours of the right insofar as it does not discriminate against people, who are protected by the Equal Protection clause. So in the man-tree example the government has limited the right to marry to encompass only humans and not trees. Conceptually though, trees could marry, but we do not allow them.

This argument, which is better than the first one and is more likely to be Gabriel's point, does not explain why society would create a right of marriage that could include anything. Why, in theory, would we make an institution that allows rocks and trees to marry? Until someone can explain this point to me, I'm going to stick to my understanding of marriage historically being rooted in procreation.

If marriage is rooted in procreation, it cannot include SSM, or man-tree relationships for that matter. Legislatively, we can expand the concept to include anything we want, because we are not required to define marriage based on procreation. But I'd rather leave that up to the people to decide rather than have the courts create this new right.

Tuesday, March 15, 2005

Gabriel responded to my procreation argument (which in reality was an integration argument; procreation was only a basis for that integration).

His argument first attacked my position from two angles:

One, that there really is no state interest. He reasons that,

"It is clear from a number of court decisions that we possess the right as individuals to make our own decisions with regards to marriage and procreation. The government certainly has an interest in seeing that babies that are born are cared for to the best of our ability. It has an interest in helping those that wish to have babies to do so. It does not have an interest though in pressuring an individual to procreate. That choice belongs to the individual and not the government."

Here Gabriel misunderstands my argument. I did not argue that the government has an interest in pressuring people to procreate. I argued that it had an interest in promoting procreation; the law is merely a means of furthering that interest.

His argument is flawed however. The state is not pressuring anyone to do anything. It is not as if the State is closing off all other forms of relationships. People are free to procreate when they want and have sex with whom they choose. All the state is doing is providing incentives for people to enter into an arrangement that will have a better chance of resulting in procreation. The vast majority of marriages do result in the couple having children.

He also contended that "the policy of prohibiting same-sex marriage can hardly be said to be substantially related to this objective. " He reasons that the law is not sufficiently related to the objective because,

"by denying the recognition of one's same-sex marriage, one might instead seek out an opposite-sex partner, and then one might procreate with that partner, thereby having a child whereas one might not have had a child with a same-sex partner."

I fail to see how, even if one construes the point as he does, that the State's law is not substantially related to its objective.

And if we apply strict scrutiny, the law is not narrowly tailored because

"couples who have children in same-sex relationships are still denied marital recognition (incidentally doing a great deal of harm to the child) and the denial of recognition is no guarantee that anyone will seek out an opposite-sex spouse instead, much less an opposite-sex spouse with whom they will subsequently have a child. "

Same-sex couples cannot have children by themselves. Since that reality is a biological fact, we do not afford them the presumption of fertility. Although they can have children with outside help, there's no reason for the state to promote a situation where an outside actor must be involved in the couple's procreation.

I also fail to see why we must have a guarantee that someone will enter an opposite-sex marriage in order to promote such arrangements.

Another point he makes is that procreation is not the real reason behind the law. Even if we believe that procreation is not the reason behind these laws today, can we really argue that procreation was not the primary reason when these laws were created hundreds of years ago?

Gabriel ends his post by distinguishing between man-tree relationships and SSM. He argues that trees do not have rights and therefore can bring suits. So, using this logic, if we amended the Equal Protection clause to say a State cannot "... deny to any person or tree within its jurisdiction the equal protection of the laws," then the human could bring a suit on behalf of the tree? Is he saying that really a tree can marry, but it only cannot sue because it is not covered by the 14th Amendment? What kind of definition of marriage is being used here?

One last point: my analogy was not intended to be offensive. I was merely attempting to point out that any definition of marriage that extended the idea passed the procreation concept would have to explain why we should draw the line at relationships between two people.

Gabriel responded to my classification argument, but I do not believe he added anything new to the discussion. It seems that we are just running around in circles on this issue, so I will try to rephrase my argument more clearly.

The basic gist of my argument is that whether there is a classification is up to the judge to determine. To be a classification, the law must in some way place the different groups into classes. Those classes must be made up of individuals or groups that have different obligations or rights. If they have the exact same rights or obligations, then there are no classes and hence no classification.

In the case of SSM, we have two distinct ways of looking at the problem. Either the law requires men to marry women and women to marry men and therefore classifies, or it requires both women and men to marry members of the opposite gender and therefore does not classify. Gabriel believes the former while I the latter.

In other words, we can frame the law in two different ways. And how frame it has important ramifications as to whether there's a classification or not.

Gabriel defines classification as "the placement of individuals into two or more different classes based upon some characteristic." I don't disagree. The only question is what are the two classes he is referring to. He obviously believes that we have men in one class, in that they can only marry women, and women in the other because they can only marry men. I argued that we only have one class -- one where everyone can only marry people of the opposite gender.

Judges have discretion to determine if a classification exists or not. This idea is similar to where a judge has to determine the level of abstraction or what legal rule to apply. I believe they should base that determination on whether there was an intention to classify. If the lawmakers wanted to classify (for whatever reason), the judge should find a classification. If not, she shouldn't.

Gabriel argues that this analysis is wrong because there is either a classification or there isn't. I believe this statement is true when the judge a priori finds a classification. Yeah, if the judge believes there is a classification, then whether there was an intended classification is irrelevant. But my whole argument is that whether there is a classification is dependant on how we view the law.

Gabriel believes "the marriage laws classify based on gender is obvious." I disagree. His proof is that whether a transsexual was a male or female had practical ramifications on whether the person had parentage rights. I don't really see how this case is any more illustrative then the standard "Jack can marry Julie but Cindy can't" argument.

In both situations the person cannot marry a member of the same sex. The question of Sterling's sex is relevant because it is determinative of which sex he can marry. If he was female he could not marry a member of the same sex. If he was male, he could not marry a member of the same sex. The question is simply what is the same sex that he cannot marry.

I argued that most marriage laws are designed to classify. I used the term "goal" when I probably should have said "intention" or "purpose." Obviously no law is created for the sole purpose of classification. A law that is created to classify generally classifies for a reason. My point was that the marriage laws of majority of the states were designed to classify based on sexual orientation and therefore we should construe the law in that vein.

Let me make a point about how Loving and McLaughlin are distinguishable from the present case. In the race cases, there clearly was an intention to classify based on race. Although the Courts could have found no classification, that construction would have made no sense. Why pass a law that uses racial language if there's no intention to classify? Obviously the point of the law was to create two classes: Whites who could not marry Blacks and Blacks who could not marry Whites.

In the case of SSM, the law is not designed to classify based on gender; it is designed to classify based on sexual orientation. Therefore the judge should find the law classifies based on the intended classification.

The classification in this case is only sexual orientation because the union is not recognized while a heterosexual union is recognized. Gabriel argues that this logic is wrong for two reasons.

First, it implies that finding one classification precludes the finding of another. I don't deny that the courts could find a classification based on gender and orientation. What I am asking is why they should. They could just as easily find only one.

Second, he points out that we are required to look at the situation from the individual's viewpoint, not the group. This argument maintains that we must look at the members of the union to see if they there is a classification. I don't agree with this statement either. In any given situation a person is treated the exact same way as a member of the opposite gender. If a male tries to marry a male, he cannot. He is treated the exact same way as a person in the exact same situation; that is the law treats him the same way it would treat any person who wanted to marry a member of the same sex.

Gabriel finishes with a few questions:

"If a law required everyone to use an opposite sex doctor, would he "choose" to view that law as using gender classifications?"

Yes, because the intention of the lawmakers was to classify based on gender.

"If the law mandated stiffer penalties for mugging an opposite sex victim, would he "choose" to view that law as using a gender classification?"

Yes, because the intention of the lawmakers was to classify based on gender.

"If the law refused to recognize interfaith marriages would he "choose" to view that law as using a religious classification?"

Yes, because the intention of the lawmakers was to classify based on religion.

Monday, March 07, 2005

Gabriel's second claim dealt with my argument that integration is viewed as less of a problem than segregation. He argues that I misconstrued this point since the Court still applied strict scrutiny in Grutter and that integration is less of a problem only to the extent that it's easier to justify as a compelling state interest.

This argument is true, but when I made this argument in my post, I had already argued in the alternative based on the premise that the Court would find gender discrimination. Before embarking on the integration-segregation argument I stated:

"But let's say we should frame it as discrimination based on gender and therefore subject to intermediate scrutiny."

I was unclear on this point, but the integration argument is within the context of justifying the classification based on an important governmental objective. My point was that integration was held to a lower standard than segregation; that means the state will have an easier time passing intermediate scrutiny.

I did not properly develop this point, so I'll do so now. Justice O'Connor in Grutter argued,

"Absent searching judicial inquiry into the justification for such race-based measures, we have no way to determine what “classifications are ‘benign’ or ‘remedial’ and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics. We apply strict scrutiny to all racial classifications to “ ‘smoke out’ illegitimate uses of race by assuring that [government] is pursuing a goal important enough to warrant use of a highly suspect tool.” Ibid. (internal citations omitted)"

So the issue here is whether integration is an "illegitimate use of gender."

Like any other test, which idea would constitute an "important governmental objective" that allows discrimination that is "substantially related to achievement of that objective" is up to the justices. Justice Ginsburg in Gratz argued that exclusion and inclusion are entirely different concepts and whereas exclusion is almost always wrong, inclusion can be better justified. Her argument was also made in reference to a racial classification, where the standard is substantially higher.

Society has many reasons to integrate the sexes; one such reason is procreation. Every society has an interest in surviving and to exist it needs to breed new members. That idea is best realized through opposite sex couples having children. Society therefore supports procreation by promoting integration. Integration is this vein should be promoted.

Obviously if we allowed SSM, men and women would still integrate since the vast majority of the public is heterosexual. But one could also argue that without preferences universities would still accept members of the preferred minorities. The idea is that a lower number would be selected and that goes against a state interest.

If we allowed SSM, less men would integrate with women and vice versa. The reason is that (some) homosexuals have historically married people of the opposite gender when no other avenue was available. Whether it was societal pressure or legal recognition, homosexuals did marry members of the opposite gender and procreated. Today we have a much lower level of societal pressure, but for now the only legal avenue for recognition is heterosexual marriage. It would stand to follow that some homosexuals who would enter into SSMs if they had the opportunity might do so.

Without question there are people who are attracted to both sexes or people who are more attracted to their gender but are still attracted to the opposite gender. Many of these people would choose marriage and the benefits it provides over a non-marriage relationship with a member of his/her sex. That choice has a much higher probability of resulting in procreation than a same sex relationship.

But if we allowed SSM, many of those people would likely choose to enter into that relationship. Society is therefore promoting procreation by leaving open only one avenue for marriage.

Gabriel, as well as other advocates of SSM, argue that the fact we allow sterile couples to marry goes against this argument. I do not see how. Just because the state does not choose to promote its interest in every possible way does not mean it cannot promote its interest in any way.

So if we allowed SSM, we would have a lower level of procreation than we have under the current laws in most states. Integration is therefore "substantially related to achievement of that objective," and not an illicit use of gender. The last point Gabriel dealt with was my argument that marriage is by definition between men and women. Perhaps I was unclear on this point as well, since Gabriel did not really respond to my argument at all, so I will quickly reiterate.

Marriage throughout history has been between men and women. The reason for this institution is procreation. Since only heterosexual couples can procreate, the institution was limited to them. But in creating marriage, society drafted a broad rule and did not, for the most part, make exceptions within the male/female marriage concept.

I argued that in other fields the law assumes procreative ability even after it has become impossible. I proposed a possible explanation based on judicial economy; that is courts find a presumption of fertility when dealing with heterosexual people. But that presumption only exists when the marriage is between heterosexual people, who can normally procreate, but not homosexual couples because, in general, they cannot procreate.

The point of this argument is to show that even if the denial of SSM is gender discrimination, there's no discrimination here because the right given to heterosexual couples cannot, by definition, be given to same-sex couples.

Gabriel asks if California could have used this argument by saying that cells are, by definition, between members of the same sex. Of course they could, but as a practical matter the courts will always be "strict" in applying strict scrutiny when dealing with race.

But in reality the situations are different. Creating a definition is fundamentally different than applying a longstanding one. In the case of marriage, the definition preceded the union and the Constitution. The state did not create this definition to get around a gender classification. The definition preceded the laws of all our states.

To use my earlier example could someone who wished to marry a tree argue that he is being discriminated against and then require the state to provide a rational basis for this classification? Of course not. Can anyone imagine a court going through the whole Equal Protection analysis and then forcing the state to provide a rational basis for its law? I certainly cannot. The court would likely just point out that trees simply cannot marry.

There's no difference between a man-tree marriage and a SSM. Legally, neither cannot exist by definition.

On the point that states sometimes allow people to marry even if they cannot procreate and sometimes only if they cannot procreate, that just shows there are exceptions. As a legislative matter, that might be a solid argument to allow SSM, since it proves we already have exceptions. But constitutionally that does not show marriage is not solely an opposite sex institution.

Sunday, March 06, 2005

Gabriel, on Galois, responded to my post about SSM and Equal Protection, and I regret that to a certain extent I was unclear. I will try to clarify some of my arguments and in the process respond to the points he made. I apologize if I misconstrued some of his arguments, but I don't believe any such misunderstandings undermined the theme of my post.

I'll deal with the first point first and the others in later posts. Time constraints do not allow me to respond to all the points at once.

The first charge is that I mischaracterized his argument that intent is irrelevant if the statute at hand uses gender specific language, because classifications based on gender are suspect on their face. Thus, heightened scrutiny is necessary to "'smoke out' illegitimate uses of gender."

I didn't really mischaracterize his argument, but I was not clear in mine. I'll try to be more clear this time around.

One problem with his argument is that it cannot be applied to all states. Let's use NY as an example. In Hernandez v. Robles, 2005 NY Slip Op 25057, 7, the recent NY Supreme Court case requiring the state to recognize SSM, the Court noted that NY's Domestic Relations law does not specifically use the terms 'man' and 'woman.' That led the Court to conclude that NY's Domestic Relations law "defines jural marriage without any reference to the sex of the parties to a marriage." So it appears that in NY that the marriage laws are gender-neutral, and at least under Gabriel's analysis, need not be subjected to heightened scrutiny.

Other states do have laws and constitutional amendments that explicitly define marriage as between a man and woman (although many states have laws that deny recognition of SSM). So in those cases, the laws are not gender-neutral. But does that automatically subject them to heightened scrutiny?

The Supreme Court has constantly ruled that racial classifications are by their very nature subject to strict scrutiny. It has also applied intermediate scrutiny to gender classifications. But are the laws in question a classification based on gender? If the laws only disallow SSM (such as the laws of Alabama), then they are classifying two different types of unions: marriages between a man and a woman, which are recognized, and "marriages" between members of the same sex which are not (there are other types of so-called marriages, such as incestial but for the purpose of this argument, we'll ignore them). Therefore the classification in the statute is not gender-specific.

If the law requires a man and a woman (Arkansas for example), then the law is gender specific. But is the law a classification? To be a classification, the law must distinguish between different groups. The law in Craig allowed woman to buy alcohol at a younger age. The law in US v. Virginia only allowed men in VMI. But these marriage laws do not distinguish between men and women in any way. They require the exact same actions on the part of both groups.

Arkansas marriage laws require that both a man and a woman marry a member of the opposite sex. This is not an argument that they both have different but equal burdens. They have the same burden.

I know you did not bring in Loving in this vein, but you did mention Loving in the context of equal burdens. In Loving the law required Whites to marry Whites and Blacks to marry Blacks. The classification in that case was that Whites could only marry Whites and Blacks could not marry Whites. I'm having trouble finding the actual text of that law, but given its motivation it is not a stretch to assume that Blacks could marry Indians but Whites could not. If this fact is true, the law classified to the extent that it banned Whites from marrying anyone but Whites but allowed Blacks to marry Blacks and Indians. The law did therefore impose different burdens on the parties, which immediately made it a classification and subject to strict scrutiny.

Obviously, even if the law had imposed equal burdens, the Court would have struck it down. The Court would then have had two constructions of the law: it could have viewed it as a requirement that Whites marry Whites and Blacks marry Blacks and assume the law classifies the two groups; or it could have found that the law imposed the same burden in that it required the two races to marry their own race. If the Court wanted to uphold this law, it probably could have on the second construction, even if it did not want to get into the issue of original understanding (which probably supports this law, BTW). Courts often choose between two different constructions based on the conclusion they wish to come to. This idea is found commonly in contract law, where different constructions lead to drastically different outcomes.

There is no doubt the Warren Court wanted to strike down this law. The standard construction of all racial laws is the first construction I offered. That is, the court will assume that there are equal but separate burdens. Once the Court notes separate burdens, it recognizes a classifications based on race and triggers strict scrutiny.

But do the courts automatically frame the issue this way in gender issues? Meaning where there are restrictions that apply to both genders equally do the courts construe these facts as a classifications and require heightened scrutiny or does the court claim there is no classification at all? Neither US v. Virginia or Craig v. Boren dealt with this issue and I haven't found a Supreme Court case that has.

The truth is if the court automatically finds a classification in gender related laws and applies intermediate scrutiny even if the burdens are equal but different, it does not follow that it will when the issue is SSM. In Lawrence, the Court specifically refused to deal with the Equal Protection issue. Justice O'Connor who did deal with that argument, applied a higher version of rational basis because the law distinguished based on sexual orientation, but did not find gender discrimination. In Romer v. Evans the Court similarly did not find gender discrimination but discrimination based on sexual orientation. I've yet to see a federal precedent that framed the issue the same way you have.

Getting back to the point I was making in my original post, how we frame the SSM issue is of great important. Courts have to frame the issue a certain way, and how they frame it has huge practical ramifications. If we say that the law requires men to marry women and vice versa, then the law is classifying based on gender and would be subject to heightened scrutiny. But if we say that the law is merely requiring both parties to do the exact same thing (i.e., marry people of the opposite gender), then there is no gender classification but there is a classification based on sexual orientation. Two recent cases in NY use these two constructions (although the constructions in those cases are not based on the classification found in the statute, but on the effect of the statute). Hernandez v. Robles viewed the restriction on SSM as a gender-based classification. An even more recent case, Seymour v. Holcomb, 2005 NY Slip Op 25070, 3 (N.Y. Misc., 2005), however, viewed it as a classification based on orientation because both parties are obligated to do the exact same thing.

Courts therefore have to frame the issue one way or the other. One could say that people would use the concepts underlying the restrictions as a reason for construing it one way or the other. If one believes that the restriction is based on the prevalent view at the time that homosexuality is immoral, then she would most likely see the resulting statute as a ban on SSM and not as a classification based on gender. If, however, she viewed it as misogynistic (or paternalistic if you prefer to use that term) then she'd probably construe the law as a classification based on gender. So, doctrinally, it really comes down to how one views it, which was my original point.

Judges have total discretion over this point, sort of like when they have to figure out the proper level of abstraction. Of course we could also say that the judges simply figure out which way they want to rule and frame the issue accordingly, but that would be activism, wouldn't it?

Thursday, March 03, 2005

In the post I'll take a look at whether current state laws that limit marriage to only a man and a woman violate the Equal Protection clause of the 14th Amendment. In later posts I'll try to deal with the claim that they violate the Due Process clause and whether the legislature should expand the definition of marriage to include same-sex marriage (SSM). Although they overlap I feel I should try to focus on each point separately.

In the interest of total disclosure, I'd like to make clear that to me, the argument that follows holds no weight. I'm a textualist/originalist which means that I believe the Constitution should be interpreted according to its original understanding. That basically means that unclear constitutional provisions should be interpreted according to how they were understood at the time of their passing.

Jack Balkin argued on his blog that one of the theories the SSM advocates use to explain why opposition to SSM is unconstitutional is gender discrimination. For example if Mike and Susan both want to marry Bob, under the laws of most states only Susan can marry Bob. That is discrimination based on gender because Mike is prohibited from marrying Bob because of his gender. This discrimination would violate the 14th Amendment's Equal Protection clause because it limits who the two sexes could marry.

Balkin claims the disadvantage of this theory is that it frames the issue in a way that most people would look at as a sexual orientation issue. Most people would say that the reason Mike cannot marry Bob is because Mike and Bob are homosexuals, not because they are male.

Galois disagrees because he feels that sexual orientation is inherently linked to gender so discrimination based on orientation is just another way of discriminating based on gender. What we basically have is two different ways of framing this issue. We could look at it as gender discrimination based on my example above. Or we could look at it as discrimination based on sexual orientation. So the question is which way we frame it (Galois specifically argues that it can be framed both ways).

To me, it doesn't really matter. The original understanding of the equal protection clause is limited to discrimination based on race. The equal protection clause does not forbid discrimination based on gender because of that reason. And it obviously says nothing about discrimination based on sexual orientation.

Furthermore we need to understand how the Court applies the equal protection clause. The Court today uses a tripartite system, which creates three different standards of scrutiny.

Strict scrutiny is used when the classifications are based on race, religion, national origin, etc. For a statute to survive, the government must prove the statute serves a "compelling state interest" and "is narrowly tailored to fit that interest." This standard is usual fatal. See Grutter v. Bollinger.

Intermediate scrutiny is applied when the classification is based on gender. Here to survive the government only needs to show an "important governmental objective" that is " substantially related to achievement of that objective" See Craig v. Boren.

The rational basis test is used in all other cases. The government must merely show a rational basis for the law. When the Court applies this test, the challenged legislation usually survives.

The basis of this system is a footnote in United States v. Carolene Products Co. Chief Justice Stone argued that prejudice against "discrete and insular minorities" should give rise to higher scrutiny. But the question is how this standard should apply to discrimination based on gender. Neither men or women is an insular or discrete minority. They both have the ability to make changes through the political process. So why should we apply a higher standard of review? Gener issues should then be analyzed under the rational basis test.

But let's try to look at the issue based on the Court's finding in Craig and assume that discrimination based on gender should be subject to intermediate scrutiny. We're back to the problem of how to frame the issue.

How we frame the issue has a huge practical difference constitutionally. According to Craig discrimination based on gender is viewed under intermediate scrutiny. But at this point in time discrimination based on sexual orientation is merely analyzed under the rational basis test, which usually means the courts will refuse to strike down the discriminatory legislation. So framing the issue in terms of gender is imperative for advocates of SSM.

I admit that it could be viewed either way. But we need a reason to view it either way. Why would a government refuse to recognize SSM? Galois argues that opposition to SSM is about perpetuating gender roles. Because this is the goal, the discrimination is based on sex since that's the only way to insure that these gender roles remain.

But I think there's at least a compelling argument that the goal of the state is to prevent homosexuals from marrying. I can't speak for all the states but New York's Domestic Relations law does not specifically bar homosexuals from marrying, but requires marriage to have a husband and wife. The idea that homosexuals can marry never really came up. To the drafters of this law, marriage was between a man and woman. The idea of a homosexual bond was heretical to the extent that it was immoral. The view that homosexuality was immoral was obviously a prevalent view at that time.

An attempt to frame the issue this way should be afforded at least equal weight as the view that our laws are discriminatory on the basis of gender. If you look at the reasons why homosexuality was banned in the US for so many years, it had nothing to do with women's roles. Even in Lawrence v. Texas the majority specifically did not decide the issue on equal protection grounds. Rather, as Justice Scalia noted in his dissent, the Court rejected that morality could serve as a rational basis to forbid homosexual conduct. The issue then could properly be framed as one of morality. Should society's prohibition on SSM, which is rooted in its view of the immorality of the concept, be allowed? This conception is more logical than the idea that SSM is prohibited because misogynistic purposes.

But let's say we should frame it as discrimination based on gender and therefore subject to intermediate scrutiny. SSM adovates would then argue that it discriminates based on gender and should struck down. One rebuttal to this argument is that it imposes equal restrictions on both genders.

Galois argues that the Court in Loving v. Virginia struck down an anti-miscegenation law even though it imposed equal burdens. So we should similarly require the states to allow SSM.

This argument fails for two reasons.

One, the law struck down in Loving created a segregation rule that forcibly separated the two groups (Whites and everyone else). Here the effect of the law is to integrate the two groups. The reason why the Court applied strict scrutiny is because is believed that any racial classification could be indicative of racial animus and should be struck down.

But let's say the law had required all Whites to marry Blacks and vice versa. Would that law be struck down on the same grounds? Probably not. The reason why the Court applied strict scrutiny is because it believed any racial classification should be analyzed as though it is based on arbitrary and invidious discrimination. But a law requiring the two races to marry would have been designed to mix the two races and show one is not superior to the other. Hence it is unlikely the Court would have struck down such a law on the same grounds (although the Warren Court surely would have found such a law unconstitutional).

The truth is integration is far less constitutionally suspect than segregation. Galois argues that integration is just as suspect as segregation. Citing the recently decided case, Johnson v. California (ruling that requirements to segregate incoming prisoners violated the Equal Protection clause), he argued that the Court would just have easily struck down a law that required them to be integrated.

I disagree. The Supreme Court has allowed integration efforts, such as affirmative action, even if done by a public university. (see Grutter) Does anyone really believe that if the university had a policy that only allowed Whites the Court would have upheld it?

Sometimes the Court has even forced integration. The Supreme Court has required school districts to provide busing to insure that schools would be more integrated.

The second problem with this argument is the definition of marriage is between a man and woman. The reason for that is that when the law was passed the primary (if not sole) purpose of marriage was about procreation and child rearing. In Loving the point of the law was to promote racial superiority of whites and by extension maintain the racial inferiority of Blacks. Laws designed to promote racial superiority were found to be contrary to the Equal Protection clause. Blacks were denied the right to marry because of this bigoted social engineering project.

The situation here is different. We must try to understand what right is being denied. In Zablocki v. Redhail, the Court ruled that the right to marry is fundamental and supported by the right to privacy. But what is marriage? And what is that right being denied in this case? If the right to marry is merely the choice of any two people to form a legally binding, lasting relationship, then two males or females could not be denied that right. But since the primary function of marriage certainly has been since time immemorial for procreation purposes, marriage, by definition, is between men and women.

Could we define marriage in a broader vein? Sure, if we could explain how and why such a concept originated. In theory we could define marriage as a relationship between two people, or between a person and an object. Right now, people and trees are prevented from marrying under the laws of every state. Can we actually argue that the person who wants to marry a tree is denied his right to marry? Obviously not, because the institution of marriage was not created for that purpose. Perhaps we could call it something else, but it would not be a marriage. Maybe even the legislature could extend the definition of marriage to include man-tree relationships. But the Court cannot extend the definition of marriage to include something that does fall within the purpose of the institution.

Couldn't we just say that the law in Virginia before Loving was similar to the extent that marriage was defined as between Whites or between Blacks and that the court redefined the term? Not really. The problem with claiming that Virginia defined marriage that way is it needed to pass a law disallowing mixed marriages. The anti-miscegenation law created a penalty for "intermarrying." I would argue that the law did not change the definition of marriage as much as it created impediments between people who wished to marry. The law that was struck down was passed only in 1924. If marriage in Virginia was only between people of the same race, why would the state need to pass a law preventing mixed marriages?

Supporters of SSM will argue that the "marriage is for procreation" argument is wrong because we allow sterile and elderly couples to marry. The implicit idea is that marriage as defined by society must be broader because it includes people who cannot procreate. In other words, marriage is between two people and our laws have created illicit exceptions for SSM. If that's true, then the case is similar to Loving because in both cases arbitrary impediments were put up to stop people from marrying.

I think this argument misses the point. It's much more plausible that marriage is between a man and woman since I think everyone would agree that a primary purpose of marriage throughout the years was procreation. Marriage was therefore between men and women, two parties who could procreate the vast majority of the time. The law often does not create categories and then find exceptions to create limitations. So the question is whether the law should have created an exception and denied marriage to sterile couples.

One of the more difficult concepts in property law is the rule against perpetuities. Without getting into too much detail, the purpose of the rule was to prevent people from granting land to their heirs for eternity. One of the more interesting ideas in this rule is that we take it to its logical extreme. A classic case is the fertile octogenarian. For the purposes of this law we assume that even women who are well past child-bearing age can still have children.

Why did the law makes this assumption? I'm not sure. Maybe because it did not want to have to analyze every women's ability to procreate each time it construed a will. It would be very difficult and very invasive for courts to make this determination, so most likely courts just refused to do it.

I believe the same concept applies here. If each time people wanted to marry we required medical records to see if they can bear children, that would create a huge burden on the courts. This was certainly true before modern medicine. Therefore the legislature just decided to not make an exception for people who could not bear children and allowed basically any man and woman to marry.

Such is not the case with SSM. With sterile couples banning them from marrying is creating an exception to the general rule. With same-sex couples, they do not fall under the concept at all. Second of all, even if they did, there would be no burden on the courts because determining if a same-sex couple is capable of producing children is very easy and not invasive at all. Therefore an exception to the general rule would make sense.

On a last note, this analysis is limited only to the legal issues related the Equal Protection clause. Supporters of SSM argue that saying that marriage is by definition only between a man and woman is circular because we are assuming what we are trying to prove. Maybe that's true, but for the purpose of analyzing whether the courts should allow SSM on this ground, we must accept this definition because only the legislature has the power to make this change.

Wednesday, March 02, 2005

Yesterday in Roper v. Simmons , the Supreme Court decided that the people of 18 states cannot pass laws to execute minors. Yes, that's the proper way to frame this issue. As Justice Scalia pointed out in his dissent, the people of the states should be allowed to make this decision, not five unelected judges.

This decision is just another in a long line of rulings in which the Supreme Court usurped the power of the people by finding rights that do not exist, or finding moral reasons to overturn laws.

Justice Kennady argued that the consensus of US opinion is against executing minors. I'm not sure how 32 states is a big enough consensus to overturn laws. Justice Scalia did a great job explaining how there really isn't a consensus in his dissent.

But why should a consensus be important anyway? Do we not believe that states have a right to make its own laws providing they don't contradict federal law or the Constitution? How can we determine whether states are violating the Consituion by looking to see if other states approve? Does that not undermine federalism?

The Court believes we must determine what is cruel and unusual by the evolving standards of society. This very standard gives the Court almost unlimited discretion in making moral determinations (even based on the consensus of the "international community") and imputing them into the Constitution.

Liberals really like to analyze this case as if it was a bill that was passed. See here (focusing on whether we should listen to world opinion), here (challenging Justice Scalia's point that it's inconsistent to state that minors are able to make complex moral decisions about abortion but not fairly straightforward decisions such as not murdering) and here (glad that the Court decided to do the "civilized thing.")

None of these issues are remotely relevant in crafting a legal decision based on the Constitution. The Court cannot look to see if the laws are "civilized" or in accord with the world. In can only look to see if the Constitution prohibits it. How can the Constitution prohibit something it explicitly allowed when the amendment was passed?